A writer must “know and have an ever-present consciousness that this world is a world of fools and rogues… tormented with envy, consumed with vanity; selfish, false, cruel, cursed with illusions… He should free himself of all doctrines, theories, etiquettes, politics…” —Ambrose Bierce (1842-1914?). “The nobility of the writer's occupation lies in resisting oppression, thus in accepting isolation” —Albert Camus (1913-1960). “What are you gonna do” —Bertha Brown (1895-1987).

Monday, March 9, 2015

“...The
defendants' reliance on the ‘unmistakability doctrine’ (Def. Br. at 44-45)
fails for many of the same reasons as their reserved powers argument. A
corollary to the reserved powers doctrine, the unmistakability doctrine is a
canon of construction which provides that a contract will not be interpreted to
surrender sovereign power unless it does so in unmistakable terms. See Winstar Corp., 518 U.S. at 871-72.

“First, just
like the reserved powers doctrine, the unmistakability doctrine applies to the
interpretation of contracts, not constitutions. See id. The defendants cite no case in which the unmistakability
doctrine has been used to interpret a constitutional provision.

“Second, as
discussed above, the Pension Protection Clause imposes only a financial
obligation. It does not
surrender the State's sovereign powers. Accordingly, the unmistakability
doctrine has no application here. Ahmad, 2014
IL App (1st) 123629, 111(85-86 (unmistakability doctrine has no application
where contract did not surrender police powers).

“Third, to
the extent the defendants argue that the Pension Protection Clause surrenders a
‘police power’ to reduce pension benefits, the language of the Pension
Protection Clause (‘shall not be diminished or impaired’) is ‘plain’ (see Kanerva, 2014 IL I 15811, 41) and
unmistakable.

“Finally,
the ‘unmistakability doctrine does not allow governments to undertake actions
that are specifically aimed at
voiding a contract or preventing performance of a contract.’ United States ex rel. Anti-Discrimination
Ctr. of Metro N.Y., Inc. v. Westchester Cnty., N.Y., 712 F.3d 761, 773 (2d
Cir. 2013) (emphasis in original). Since the entire point of the Act is to
diminish pension benefits, the unmistakability doctrine cannot be used to
justify it.

“THE ACT IS
INSEVERABLE: The Act's
overriding purpose was the diminishment of pension benefits. The provisions
effecting that unconstitutional goal are inextricably linked with all of the
Act's remaining terms. Accordingly, the Act is inseverable and void in its
entirety.

“The
defendants' contention that the presence of a severability clause in the Act
renders the Act severable (see Def. Br. at 48) rings hollow. Indeed, in the
circuit court, the defendants relegated their severability argument to a
footnote, and did not even bother to identify purportedly severable provisions.
(R. C2225 n.7.)

“This Court
has repeatedly refused to sever unconstitutional provisions from other
provisions in the same legislation notwithstanding the presence of a
severability clause. See Cincinnati Ins.
Co. v. Chapman, 181 III. 2d 65, 81-86 (1998); see also Best, 179 III. 2d at 459-67. A severability clause is ‘not
conclusive’ of the issue of severability. Best, 179 III. 2d
at 460. In fact, ‘[b]ecause of the very frequency with which it is used, the
severability clause is regarded as little more than a mere formality.’ Id. at 461 (quoting 2 N. Singer,
Sutherland on Statutory Construction §44.08, at 521 (5th ed. 1993)).

“Notwithstanding
the presence of a severability clause, an act is inseverable where it
constituted a broad legislative package intended to impose sweeping changes in
a subject area, and where the unconstitutional provisions of that package were
important elements of it. Best, 179
III. 2d at 464-67 (legislation was ‘intended to effectuate comprehensive reform
of the current tort system in Illinois,’ and the unconstitutional provisions
were ‘core provisions’ that provided the ‘measures by which’ the legislation's
goals would be achieved); Chapman, 181
Ill. 2d at 82-86 (legislation was intended ‘to provide a total redistricting package,’ and that goal could not be achieved
without the unconstitutional provisions) (emphasis in original).

“That is precisely
the situation here. Both the Act and its legislative history make abundantly
clear that the overriding purpose of the Act was to diminish pension benefits.
As Senator Raoul commented, the Act's provisions were needed to ‘finally break
the political stalemate.’ See 98th III. Gen. Assembly, Senate Proceedings, Dec.
3, 2013, at 3 (SA 39).

“‘Some
provisions were sought by House Democrats, some were sought by House
Republicans, some sought by Senate Republicans, and some sought by the Senate
Democrats.’ Id., at 4 (SA 40). ‘All
told, the provisions in this bill are all part of an integral bipartisan
package,’ Senator Raoul explained. Id.; see
also, e.g., id., at 19 (SA 44) (the
Act's restrictions on collective bargaining, entitled ‘Duty to bargain regarding
pension amendments,’ were intended to ensure that ‘the things achieved by this
bill cannot be undone by way of collective bargaining’).

“The entire
purpose of that legislative package was to save the State money by diminishing
pension benefits, particularly by diminishing the automatic annual increases
codified in the Pension Code. See Public Act 98-0599, §1 (SA 63-65)
(legislative statement); see also 98th Ill. Gen. Assembly, House Proceedings,
Dec. 3, 2013, at 7 (SA 61) (remarks of Speaker Madigan) (stating that ‘the 3
percent compounded’ AAI has ‘been identified as the chief cause of the
financial problem’ addressed by the Act).

“The AAI
diminishment provisions were so important to the Act's operation, in fact, that
the ‘severability and inseverability’ clause deems them inseverable from
pension funding provisions. See, e.g., Public
Act 98-0599, §97 (SA 388-89) (amendments to Pension Code reducing AAI and
requiring AAI skips, sections 2-1 19.1(a-1) and (a-2), 14-114, 15­136(d-1) and
(d-2), and 16-133.1, are inseverable from funding ‘guarantee’ amendments to
Pension Code, sections 2-125, 14-132, 15-156 and 16-158.2).

“The
unconstitutional pension diminishments thus are inseparable from the Act's
other provisions, and clearly the other provisions would not have been enacted
without them. Best, 179 Ill. 2d at
460 (legislation is inseverable where valid and invalid provisions are mutually
connected with and dependent on each other such as to warrant the belief that
the legislature intended them as a whole).

“Moreover,
attempting to salvage valid pieces of this puzzle would be an exercise in
futility, particularly since the defendants likewise concede that all of the
Act's provisions ‘advance substantially the same basic objective.’ (Def. Br. at
48.) The Act's severability provision states that the Act's changes to 39
distinct sections and subsections of various statutes ‘are mutually dependent
and inseverable from one another,’ but that those 39 provisions are ‘severable
from any other provision of this Act,’ which is generally
severable. See Public Act 98-0599, §97 (SA 388-89).

“That list
of 39 inseverable provisions includes some, but not all, of the provisions that
unconstitutionally diminish pension benefits and have been challenged in this
litigation. In fact, the defendants expressly concede that ‘some provisions
outside the inseverability clause would fall if this Court affirms the circuit
court's decision because the State's only defense of them relies on the State's
police powers.’ (Def. Br. at 49 n.6.) In other words, if this Court agrees with
the circuit court that the police powers defense is invalid, more than 39 of
the Act's provisions must be invalidated.

“Simply put,
once pension diminishments and pension
funding provisions have been invalidated, whatever remains bears no resemblance
to the Act that the General Assembly actually enacted, and the entire Act is
therefore void. Best, 179 Ill. 2d at
462 (‘[T]he entire act will be declared void if, after striking the invalid
provisions, the act that remains does not reflect the legislative purpose in
enacting the legislation’).

“‘Any
attempt by this court to retain only bits and pieces of this dramatic
legislation would do violence to the legislative intent,’ Chapman, 181 Ill. 2d at 85, and would, in effect, create ‘another
piece of legislation that the legislature cannot be presumed to have intended
to enact,’ Best, 179 Ill. 2d at 467.

“Under these
circumstances, ‘[t]he new law would be created by this court and not by the
General Assembly, because it enacted a different one.’ Id. (quoting Commercial Nall.
Bank of Chicago v. City of Chicago, 89 Ill. 2d 45, 75 (1982)). That would
be contrary to the Constitution and to numerous decisions of this Court. Id.The circuit court was therefore correct to
find the Act inseverable.

“...The Pension Protection
Clause protects public servants in Illinois against diminishment or impairment
of their constitutionally-promised pension benefits. The Clause was intended,
above all, to insulate public pensions from the danger that government
employers would claim that funding shortfalls or other fiscal exigencies
required benefit diminishments or impairments, as the defendants do here.
Public Act 98-0599 violates both the letter and the purpose of the Clause.
Accordingly, for all of the reasons stated above, the plaintiffs respectfully
request that this Court affirm the judgment of the circuit court in its
entirety.”

Teacher/Poet/Musician

Copyrights & Fair Use: This blog contains copyrighted material the use of which has not always been specifically authorized by the copyright owner. I am making such material available in my efforts to advance understanding of issues vital to a democracy. I believe this constitutes a “fair use” of any such copyrighted material as provided for in section 107 of the U.S. Copyright Law.

Persona

"I want everything to be explained to me or nothing. And reason is impotent when it hears this cry from the heart. The mind aroused by this insistence seeks and finds nothing but contradiction and nonsense" —Albert Camus (1913-1960).